Swift v. Mayer

Headnote

Examination before trial—Affidavit.

An affidavit, made in 1889, to procure the examination of defendants before trial, in an action to set aside a deed made in 1883, as fraudulent, which states that the defendants and one M. are the only persons who have knowledge as to the whereabouts and condition of defendants’ property, is insufficient under rule 83.

Appeal from order granting motion to set aside order for an. examination of defendants before trial.

The special term, on granting the motion, delivered the following'opinion:

Dugro, J. The order which the defendants move to vacate is for a deposition to be taken as prescribed in article 1, tit. 3, chap. 9, Code Civ. Pro., §§ 870-886. It is not an order directing persons to appear and be examined under oath concerning matters pertaining to a discovery. The papers upon which the order was granted, and the order itself, show this. The plaintiffs are, therefore, wrong in contending that the papers upon which the order was granted need not conform to rule 83. The affidavit upon which the order was granted specifies no facts and circumstances which show that the examination desired is material and necessary ; for, though it be conceded that the persons sought to be examined “ have especial knowledge as to the whereabouts and condition of any property belonging to the defendants, Ferdinand Mayer and Benjamin Mayer, and they and the said Benjamin Mayer have substantially the only knowledge of the subject,” I cannot see how evidence as to the whereabouts and condition of any property belonging to the defendants, Ferdinand and Benjamin Mayer, will be material and necessary to the plaintiff in the trial of this action. The affidavit is made in May, 1889, and so refers to property then existing, while the action is brought to have a conveyance made in 1882 declared to have been made in fraud, etc., of creditors. Although the facts and circumstances need be but slight to warrant an examination in a case such as this, those presented by the affidavit do not suffice. The papers raise a suspicion that the order is desired merely for inquisitorial purposes.

The motion to vacate the order is, therefore, granted, with ten dollars costs.